R. v. Krafczyk, 2011 ABQB 107

Court of Queen ’ s Bench of Alberta Citation: R. v. Krafczyk, 2011 ABQB 107 Date: 20110222 Docket: 100393701Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - Joshua James Krafczyk Accused _______________________________________________________ Reasons for Judgment (Ruling on Voir Dire ) of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ Table of Contents I. Introduction.............................................................................................................. Page: 1 II. Facts........................................................................................................................ Page: 1

III. Evidence................................................................................................................. Page: 3 a. Initial Stop................................................................................................... Page: 3 b. Reasons for Detention............................................................................... Page: 4 c. Search for Drugs........................................................................................ Page: 5 IV. Positions of the Parties......................................................................................... Page: 5 V.

Analysis................................................................................................................... Page: 7 a. Initial Stop................................................................................................... Page: 7 b. Detention, Search and Seizure................................................................ Page: 8 c. Right to Retain and Instruct Counsel...................................................... Page: 11 d. Expert Notice............................................................................................ Page: 11 e.

Section 24(2) Charter Analysis.............................................................. Page: 13 i. The seriousness of the Charter -infringing state conduct......... Page: 13 ii. The impact of the breach on the Charter -protected interests of the Applicant Page: 14 iii. Society’s interest in the adjudication of the case on its merits Page: 14 VI. Conclusion............................................................................................................ Page: 14 I. Introduction [ 1 ] The Applicant, Mr.

Krafczyk, is charged with alleged possession and trafficking of cannabis marihuana in an amount exceeding 3 kg on or about April 1, 2010: Count 1 and 2 of the Indictment. The Applicant is also charged for allegedly escaping from lawful custody on or about April 1, 2010: Count 3 of the Indictment. [ 2 ] The Applicant alleges in his Notice of Charter Motion that his right to silence, right against unreasonable search and seizure, right against arbitrary detention, right to retain and instruct counsel without delay and to be informed promptly of the reasons of detention under sections 7, 8 , 9 , 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of The Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11(“ Charter ”) have been infringed or denied. He seeks exclusion of the evidence obtained and statements made by him: s. 24(2) of the Charter . During the submissions on the voir dire, the only issues that were argued by Counsel for the Applicant were whether there was arbitrary detention under s. 9 of the Charter , whether the warrantless search of the vehicle was unreasonable under s. 8 of the Charter and whether the evidence obtained should be excluded. II.

Facts [ 3 ] The following facts have been admitted by the accused in the Agreed Statement of Facts (Exhibit VD-1): 1. On April 1, 2010 the accused was stopped by Constable Frost at or near Canmore, Alberta. 2. The accused admits his identity for the purpose of trial.

3. The accused was driving a grey Buick Regal with a British Columbia licence plate. 4. The substance seized from the accused’s vehicle has been tested and was found to be cannabis (marihuana). Specifically, counsel for the accused admits the following: a. That the substance described as 23 pounds of marihuana found in a backpack in the grey Buick Regal driven by the accused was sent for analysis and determined to be cannabis (marihuana). b. There are no issues as to continuity of the contraband in question. 5. The accused admits the evidence of Constable Ortega-Caceres. 6.

Constable Ortega-Caceres attended the scene as back-up for Constable Frost. 7. Constable Ortega-Caceres witnessed the accused running away from Constable Frost toward a wooded area and Constable Frost run after him. 8. Constable Ortega-Caceres let Constable Hine know that members were on foot pursuit and then proceeded to park his vehicle to run after the accused as well. 9. The accused had jumped over a barbwire fence and entered a wooded area. 10. After some 500 metres of chasing the suspect, Constable Frost requested that Constable Ortega-Caceres return to the vehicles to secure same. 11.

Constable Ortega-Caceres advised Constable Hine that the accused was still at large and requested that he attend the scene as the vehicle needed to be secure. 12. Constable Ortega-Caceres and Constable Hine took strategic positions around wooded area to keep the accused contained as Constable Frost had requested the tracking of the accused by PDS Gus. 13. Constable Ortega-Caceres took a position at the Spring Creek Trailer Park and other members took other positions. 14. PDS Gus attended the scene and tracked the accused all the way to Millennium Park. 15.

The accused was not found and was later apprehended in British Columbia. 16. The qualifications of the Crown’s expert witness, Constable Tim Fralick, are admitted along with his opinion. The accused admits that the quantity of the drugs alone constitutes possession for the purpose of trafficking. 17. Constable Fralick is an expert qualified to provide opinion evidence with respect to the packaging, consumption, pricing, methods of distribution and tracking and personal consumption of marihuana.

18. The photos to be tendered by the Crown are accurate representations of that which they depict. 19. Continuity of all exhibits. 20. All events occurred in the Town of Canmore, Province of Alberta. III. Evidence [ 4 ] Constable Frost testified on the voir dire . He is a member of the RCMP and was on duty on April 1, 2010 at and near Canmore, Alberta. It is clear from Constable Frost’s testimony that he has received pertinent training with respect to drug-related investigation and that he has acquired pertinent experience in working on several drug-related investigations.

He testified that over the course of the last five and one half years, he entered into or assisted in roughly 300 drug investigations. [ 5 ] An in-car DVD was presented at the voir dire : Exhibit VD-3. It contained a video of the initial stop to up and until a few minutes after the Applicant fled the scene. a. Initial Stop [ 6 ] Constable Frost testified that he activated his emergency lights and then his siren. As it is possible to see on the video presented, it took quite a few seconds before the Applicant finally decided to stop his vehicle.

On the video one can see Constable Frost going to the Applicant’s window on the passenger’s side. Constable Frost said that he noticed that the backseat had a pillow and a large blanket almost like a comforter sitting on it. Constable Frost explained that people who transport large quantities of drugs or other contraband commonly sleep in the vehicle with their product. [ 7 ] On the video, it is clear that the Applicant lowers his window, although not all the way down. Constable Frost then asked the Applicant to roll it all the way down. Constable Frost said that the Applicant asked him why he was pulled over.

Constable Frost testified that the Applicant asked that question in an overtly tense or aggressive way. He told the Applicant that when he ran the licence plate it did not match his vehicle, but then realized that there was one letter off, and in fact it matched the vehicle. Constable Frost added that he was checking if the Applicant was tired or driving and drinking because he noticed that he was driving 90 km/h in a 110 km/h zone, which Constable Frost observed was considerably slower than the rest of the moving traffic.

Constable Frost testified that it caused him some concern considering that the roads were bare and dry and the visibility was good. He thought that with that day being the beginning of a long weekend that the driver may potentially be impaired by alcohol or fatigue. Constable Frost said that he noted that there was a single key in the ignition. He explained that in his experience, a single key is more associated to business-related vehicles rather than domestic vehicles. [ 8 ] Constable Frost asked the Applicant for his driver’s licence. The Applicant said that he was waiting for new ID and did not have it.

The Applicant gave Constable Frost an ATM card with his name on it. Constable Frost asked the Applicant if he had a valid driver’s licence and the Applicant said that he did. He said that his licence was a British Columbia licence. He told Constable Frost that he had lost his wallet. When Constable Frost asked the Applicant where he was coming from and where he was headed, he said that he was coming from the Kootenays and was driving to Saskatchewan to look at some horses. The Applicant spelled his name and gave his date of birth. [ 9 ] Constable Frost went back to his vehicle to proceed with verification.

Constable Frost noted that when he ran the licence plate check again, the vehicle was registered to a third party who was not present in the vehicle. During the voir dire, Constable Frost explained that through both his training and experience, this was consistent with someone transporting contraband because it protects the vehicle from being seized. Constable Frost found out that, in fact, the Applicant had lied to him because according to a computer check he did not have a valid driver’s licence, but a cancelled driver’s licence status for the Applicant.

He explained that when he enters a person’s name in his computer it will query the name for the licence plate or for a driver’s licence in the province. It also performs a “29 NCNI” which is a criminal name index check which looks as to whether there are any outstanding warrants as well as any outstanding criminal record. He explained that when he did the British Columbia query, he got as a result the Applicant’s name and his driver’s licence number duplicated by two or three entries, so he needed to cut and paste this information in another system in order to query that

licence. As the information came up, the CNI also came up on his screen and he noted that the Applicant had a drug-related criminal history, no outstanding warrants at that time and an associate FPS number which is the way that fingerprints are tracked. Constable Frost testified that he saw that the Applicant had previous convictions for possession for the purpose of trafficking and a conviction for production of a scheduled substance which had occurred in Manitoba and Saskatchewan, and the production conviction was in British Columbia.

He said that once he had that information it solidified and brought his focus to a drug investigation. b. Reasons for Detention [ 10 ] Constable Frost decided to call for back up. He explained that someone who drives while disqualified meant that at the very least, a violation ticket will be issued and the vehicle will potentially be impounded for 30 days. [ 11 ] Constable Frost then went back to the vehicle in which the Applicant was waiting. He said that the Applicant looked very tense and his body language was not one of being cooperative.

He told the Applicant to step out of the vehicle and advised him about his driver’s licence and said to him that he needed to talk to him. Constable Frost then noted that the Applicant “relaxes very slightly, enough that he takes his seat-belt off, starts to exit the vehicle”. As the Applicant was walking to the back of the vehicle, Constable Frost advised the Applicant that he was under investigative detention under the Controlled Drugs and Substances Act and asked the Applicant to face the vehicle.

Constable Frost said that “immediately that tension is back in his -- his body and he says something to the effect of, ‘What, are you kidding me?’” Constable Frost answered that he was not. Constable Frost explained that even though he told the Applicant that he was being detained for investigation, he did not have a chance to give him his Charter rights because at that point he did not feel that the environment was safe and was waiting for it to be secure.

When Constable Frost tried to handcuff the Applicant, and as seen in the video, the Applicant faced him, acted as if he was going to hit Constable Frost and fled the scene. Constable Frost started running after the Applicant but could not catch up. Constable Frost yelled a number of things including that he would use his taser (even though he actually did not have the device on him), to stop, that he was under arrest, “Police”, that he was under arrest for fleeing and that the dog was coming. In fact, the Applicant was not apprehended until some time later. c.

Search for Drugs [ 12 ] Constable Frost explained that he believed a third-party motor vehicle was now abandoned on the side of the highway. However, he was not sure if the fact that the Applicant had unlawfully left changed what he needed to do for his investigation considering that he had not read his Charter rights. He testified that when the Applicant fled the scene, his mind went from having a reasonable suspicion to the actual belief that there were drugs in the vehicle.

Constable Frost decided to act as though the Applicant was still present and took his narcotics dog out, PDS Gus, and deployed him around the exterior of the vehicle. The dog indicated a positive confirmation to the presence of a controlled substance. The vehicle was then searched. Twenty-three pounds of marihuana were seized from the vehicle. IV.

Positions of the Parties [ 13 ] Counsel for the Applicant argues that the first issue that needs to be determined is at what point was the Applicant detained by Constable Frost for the purposes of criminal investigation, whether detention was necessary and whether there were reasonable grounds to suspect that he was connected to a particular crime. The second issue raised is whether the search of the Applicant’s vehicle was an unlawful search and if so whether the evidence should be excluded.

Counsel for the Applicant submits that the Applicant was arbitrarily detained because all of the reasons given by Constable Frost are neutral indicators and that he acted on a hunch and speculation. The Applicant submits that Constable Frost did not have reasonable grounds to detain nor to arrest him. Referring to R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59 , the Applicant submits that a nexus between the individual to be detained and recent or ongoing criminal offence must be present in order for a police officer to be lawfully entitled to pursue an investigation.

The Applicant submits that it was not the case considering that the criminal record in 2003 was far from being recent. [ 14 ] The Applicant argues that the case at bar is very similar to the one in R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494 in that the initial detention was on a mere suspicion rather than reasonable grounds which meant that there was arbitrary detention and that the warrantless search was unreasonable under s. 8 of the Charter . The Applicant argues that like in Harrison , the evidence ought to be excluded under s. 24(2) of the Charter .

The Applicant adds that there was no smell of marihuana. The Applicant’s theory is that Constable Frost’s reason for detaining him was essentially based on his criminal record. The Applicant adds that arguably, he should have been detained because of the driver’s licence issue, but that Constable Frost candidly admitted that he does not normally arrest individuals on that ground. Thus, there was arbitrary detention and everything that followed was tainted. Further, the Applicant submits

that there were no exigent circumstances that disallowed Constable Frost to actually obtain a warrant. The Applicant agrees that the evidence may have been discovered in any event considering the fact that the vehicle would have been towed, but adds that the Charter breaches are so serious that the evidence should be excluded under s. 24(2) of the Charter . [ 15 ] The Applicant also takes issue with the dog search particularly with respect to the expert notice provided.

Relying on s. 657.3 of the Criminal Code , the Applicant submits that he did not receive proper expert notice and that disclosure of evidence does not constitute notice. [ 16 ] The Crown submits that there is no Charter violation. It argues that it is important to take all the facts globally in order to determine whether Constable Frost’s subjective belief is objectively reasonable.

The Crown states the factors that need be taken into account as follows: 1- The Applicant was going 90 km/h in a 110 km/h zone; 2- There was a single key in the ignition; 3- The window was only rolled down partially; 4- The Applicant was standoffish; 5- The Applicant had lost his ID; 6- The Applicant said that he had a British Columbia driver’s license, which later turned out to be cancelled, which led Constable Frost to believe that he had been lied to; 7- The owner of the vehicle was a third-party female owner from British Columbia; 8- There was a pillow and a comforter in the motor vehicle; 9- The Applicant told Constable Frost that he was coming from the Kootenays to go to Saskatchewan to see some horses; 10-There was lessening of tension and aggressiveness and a subsequent increase in the tension of the Applicant; 11- The vehicle was left running with the Applicant’s seat belt on; 12- The Applicant’s drug-related criminal record. [ 17 ] The Crown adds that all of these factors coupled with Constable Frost’s training and experience as a police officer with respect to drug investigation should lead this Court to conclude that the investigative detention was lawful.

The Crown takes the position that at that time there were enough factors to arrest him, but Constable Frost decided out of caution to do further investigation. The Crown submits that in any event, following the Applicant’s flight, and before the police dog search, Constable Frost could arrest the Applicant because he had fled the scene. Thus, the dog sniff was lawful, but in any event the vehicle could have been searched as incidental to the arrest had the Applicant been around.

Further, the Crown submits that a warrant was not necessary because the Applicant had no reasonable expectation of privacy, because he had in fact abandoned the vehicle.

The Crown adds that if this Court were to find that there is a reasonable expectation of privacy, the drugs would have been found regardless because the vehicle would have had to be towed and inventoried. [ 18 ] The Crown submits that if the Court finds that there are Charter breaches, it must find that they are minor breaches and the evidence should not be excluded under s. 24(2) of the Charter . [ 19 ] The Crown disagrees with the Applicant that it should have given expert notice. The Crown submits that it provided a separate statement of notes about the use of the dog from Constable Frost.

The Crown adds that the Applicant had the opportunity to cross-examine Constable Frost who was the dog handler. V. Analysis a. Initial Stop

[ 20 ] Police officers in Alberta have the power to conduct random vehicle stops on the highway for safety reasons. They cannot randomly stop vehicles for invalid purposes. As seen in the video, Constable Frost tells the Applicant that he was concerned about him drinking or being tired considering that he was driving slowly. In his testimony, he reiterated that it was a concern. The Applicant argues that the stop was arbitrary and that the situation is similar to that in Harrison .

In that case, even though the police officer had no grounds to believe that any offence was being committed, he pulled over the vehicle driven by the accused anyway, because his light had been already activated and he thought that abandoning the detention may have had affected the integrity of the police in the eyes of observers.

The majority of the Court stated that “[a] vague concern for the ‘integrity’ of the police, even if genuine, was clearly an inadequate reason to follow through with the detention.” In Harrison , the police officer found out that the accused driver’s licence was under suspension and arrested him for driving while suspended. The police officer then acted on a hunch and searched the vehicle. McLachlin C.J., writing for the majority, found that there was a Charter breach.

She wrote: [20] [...]The subsequent search of the SUV was not incidental to the appellant’s arrest for driving under a suspension and was likewise in breach of the Charter . While an officer’s “hunch” is a valuable investigative tool -- indeed, here it proved highly accurate -- it is no substitute for proper Charter standards when interfering with a suspect’s liberty. [ 21 ] In this case, I find that Constable Frost had a lawful reason to stop the Applicant. I believe that Constable Frost stopped the vehicle to inquire whether the driver suffered from fatigue or was inebriated.

It is true that Constable Frost made a mistake in entering the licence plate number, but he was also concerned with the fact that the Applicant was driving slowly even though the road conditions were good. In his experience, such a behaviour may be caused by fatigue or inebriation. His concerns were about highway safety. I find that the initial stop was not arbitrary. b. Detention, Search and Seizure [ 22 ] Following the initial stop, Constable Frost performed a licence check.

He had observed a number of factors which could relate to drug offences, but were not yet conclusive to him: the slow moving vehicle, the single key in the ignition, the blanket and pillow on the back seat, the Applicant being standoffish and that there was lessening of tension and aggressiveness and a subsequent increase in the tension, the Applicant only partially rolling down his window, the Applicant having lost his ID and the fact that he was coming from the Kootenays to go to Saskatchewan to see some horses.

Following further verifications, Constable Frost noted that the vehicle was registered to a third party who was not present in the vehicle. According to his experience this is consistent with someone transporting contraband because it protects the vehicle from being seized. He also noted the Applicant’s drug-related criminal record.

When he realized that the Applicant had lied to him with respect to the status of his driver’s licence, he decided to detain him not only because he was driving without a valid driver’s licence, but based on all of his observations, he also detained him for investigation with respect to drug offences. Constable Frost observed that the vehicle was still running and that the Applicant was sitting there with his seat-belt on.

The issue is whether the Applicant was detained arbitrarily at that point. [ 23 ] In Mann , the Court confirmed that police officers may detain an individual for investigative purposes and for a brief duration “if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary”: Mann , at para. 45 . [ 24 ] In Harrison , McLachlin C.J. noted, under a s.24(2) analysis, that motorists are subject to a highly regulated activity which includes stops for highway safety purposes, but it certainly does not give police officers reasons to stop drivers and search vehicles without a valid purpose.

She stated: [30] The majority of the Court of Appeal emphasized the relatively brief duration of the detention and the appellant’s low expectation of privacy in the SUV, and concluded that the effect of the breach on the appellant was relatively minor. It is true that motorists have a lower expectation of privacy in their vehicles than they do in their homes. As participants in a highly regulated activity, they know that they may be stopped for reasons pertaining to highway safety -- as in a drinking-and-driving roadblock, for instance.

Had it not turned up incriminating evidence, the detention would have been brief. In these respects, the intrusion on liberty and privacy represented by the detention is less severe than it would be in the case of a pedestrian . Further, nothing in the encounter was demeaning to the dignity of the appellant. [31] This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful

expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann, the relatively non-intrusivenature of the detention and search “must be weighed against the absence of any reasonable basis for justification” (para. 56 (emphasis inoriginal)). A person in the appellant’s position has every expectation of being left alone -- subject, as already noted, to valid highwaytraffic stops. [25] In this case, following the initial stop, and a computer check, Constable Frost was convinced that the Applicant was drivingwithout a driver’s licence.

In addition, based on all of his observations and his experience combined with the lie regarding the validity ofthe Applicant driver’s licence, his belief that it was a third-party vehicle and the Applicant’s criminal history he had reasonable groundsto suspect that the Applicant was involved in a drug-related offence and that it needed to be investigated further. I disagree with theApplicant that these factors taken together were neutral indicators. I find that in all of the circumstances, Constable Frost was justified indetaining the Applicant; he did not act on a hunch.

It was reasonable for Constable Frost to ensure that he was safe by attempting to usehandcuffs for the Applicant pending further investigation as to his connection to the matters which were about to be investigated. Iconclude that the Applicant was not arbitrarily detained. [26] In R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, Cory J., writing for the majority of the Court, stated that as ageneral rule, two distinct inquiries need be made under

section 8 of the Charter with respect to the right to be secure against unreasonablesearch: (1) whether the accused has a reasonable expectation of privacy, and (2) if so, whether the search by the police was conductedreasonably. A reasonable expectation of privacy is to be determined with regards to the totality of the circumstances: see also R. v.Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at para. 19. The analysis proceeds in two steps. First, whether the accused had a subjectiveexpectation of privacy.

Second, whether that expectation of privacy was objectively reasonable: Tessling at para. 19; see also R.v.Gomboc, 2010 SCC 55 at para. 18. [27] In Tessling, the police used an RCMP airplane equipped with Forward Looking Infra-Red (“FLIR”) technology camera whichrecorded images of thermal energy or heat radiating from a building in order to assist in determining whether there was a marihuana-growing operation. They did so without first obtaining a search warrant. One of the issues was whether the accused had reasonableexpectation of privacy.

Binnie J., writing for Court looked at the following facts to determine whether there was reasonable expectationof privacy existed:

(1) Did the Respondent Have a Reasonable Expectation of Privacy? [32] On the facts of this case, we need to address: 1. What was the subject matter of the FLIR image? 2. Did the respondent have a direct interest in the subject matter of the FLIR image? 3. Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image? 4. If so, was the expectation objectively reasonable?

In this respect, regard must be had to: a. the place where the alleged “search” occurred; b. whether the subject matter was in public view; c. whether the subject matter had been abandoned; d. whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of surveillance technology was itself objectively unreasonable; g. whether the FLIR heat profile exposed any intimate details of the respondent's lifestyle, or information of a biographical nature.

(2) If There Was a Reasonable Expectation of Privacy in This Case, Was it Violated by the Police Conduct? [33] With respect to this second question, as Abella J.A. pointed out, the law is clear that warrantless searches are presumptively unreasonable, absent exigent circumstances ( Hunter v. Southam , supra; Collins , supra, at p. 278; Evans , supra; and Grant , supra). However, the second question is only reached if the first question is answered in the affirmative. [emphasis in original] [ 28 ] The privacy interest of the Applicant must be evaluated in this case.

The issue is whether the Applicant had a reasonable expectation of territorial privacy with respect to the vehicle he was driving. Although not all factors enumerated in Tessling are necessarily applicable here since the facts in this case are very different, its analytical framework provides assistance with respect to some of the factors that should be considered to determine whether a reasonable expectation of privacy exists given the totality of the circumstances. [ 29 ] As recently reiterated by Binnie J., writing for the Court, in R. v.

Nolet , 2010 SCC 24 , [2010] 1 S.C.R. 851 , whether an individual has a subjective expectation of privacy, and whether that expectation is objectively reasonable, is a determination to be made having regard to the totality of the circumstances: at para. 30. Binnie J. further added that the onus of such reasonable expectation lies on the Charter claimant. In other words, where the accused does not establish reasonable expectation of privacy, no threshold justification is required because the search does not trigger Charter protection: see also R. v.

Gomboc , 2010 SCC 55 at paras. 20 and 21 . [ 30 ] In this case, Constable Frost is the only witness who testified on the voir dire . The in-car video shows that the Applicant drove the vehicle, but there is no evidence before this Court that shows whether the Applicant had permission to drive the vehicle or whether he had any interest in the vehicle or the trunk of the vehicle. The Agreed Statement of Facts does not refer to the ownership or interest in the vehicle. The video confirms Constable Frost’s testimony that the Applicant fled the scene and abandoned the car.

There is no evidence that the Applicant returned to the vehicle. The sniffer-dog search and the subsequent search of the trunk were conducted to determine whether there were narcotics in the vehicle, which were not apparent or in plain view. The search was done after the Applicant fled the scene. Therefore, even if the Applicant had, at some point, some expectation of privacy before abandoning the vehicle, the search which followed his abandonment of the vehicle did not constitute an intrusion because there was no subsisting privacy interest.

I conclude that there is no evidence before this Court that the Applicant had any reasonable expectation of privacy with respect to the vehicle. Therefore, the search did not trigger the protection under s.8 of the Charter . c. Right to Retain and Instruct Counsel [ 31 ] Although, the Applicant did not argue any of the s. 10 Charter rights contained in the Notice of Charter Motion, I will address the right to retain and instruct counsel without delay. It is clear from the evidence that Constable Frost thought that he needed to ensure that his safety was not at risk.

Then, when the officer was in the midst of ensuring that his safety was no longer at risk (which was only a matter of seconds), after which time the Applicant was going to be Charter warned, the Applicant ran away. The case law indicates that the immediacy of the detainee’s right to counsel is subject to concerns for the officer’s safety: R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460 at para.42. Considering the facts of this case, I find that the Applicant’s right to retain and instruct counsel was not infringed. d.

Expert Notice [ 32 ] The Applicant knew that a Police Services dog search had occurred and that Constable Frost was in charge. The Crown provided a separate statement of notes about the use of the dog from Constable Frost. The officer was present during the voir dire and the Applicant cross-examined him. If the Applicant thought that a formal expert notice was necessary, he should have requested an adjournment under s. 657.3 of the Criminal Code : 657.3(3) Notice for expert testimony For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, (

a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by

(

i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about the area of expertise, and (iii) a statement of the qualifications of the proposed witness as an expert; (

b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties (

i) a copy of the report, if any, prepared by the proposed witness for the case, and (ii) if no report is prepared, a

summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and (

c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b). 657.3(4) If notices not given If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party, (

a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness; (

b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and (

c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness's testimony, unless the court considers it inappropriate to do so. [ 33 ] Although it was made in obiter dicta , Watson J.’s (as he then was) opinion regarding dog handler evidence in R. v. Yassine , 2004 ABQB 406 is interesting: [16] Whether or not that particular type of evidence was of a character that required notice, within the meaning of

section 657.3 of the Criminal Code , is not resolved by me now, but it does seem to me that it is an arguable question as to whether that

section or some part of that

section may have some implications relative to the decision making by a Trial Judge on the point. [17] On this issue, I must say as well that as far as the question of fairness is concerned, an appeal judge would also have to consider whether or not the disclosure, which is made by the Crown in relation to that type of information, was sufficient to give adequate notice for the purposes of

section 657.3 of the Criminal Code or otherwise to put the Defendant on notice that, in fact, the Crown intended to introduce evidence of this sort. [18] It does seem to me that on occasions some types of expert evidence - notably dog handler evidence - is adequately informed of in advance of trial simply by the details of the report that are provided in connection with it. I mean, I cannot imagine anybody contemplating the use of a dog handler and the report of a dog handler meaning anything else but that an expert dog handler was going to be called in relation to the matter.

He was not being brought in as a witness to describe his “pet” in that particular respect. [ 34 ] I conclude that the Applicant received notice that the dog handler was going to testify and if the notice was incomplete, I

conclude that it did not affect the fairness of the voir dire . e. Section 24(2) Charter Analysis [ 35 ] If I am wrong and the evidence was in fact obtained in breach of the Applicant’s Charter rights, I will determine whether the evidence should be excluded under s. 24(2) of the Charter in light of R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 .

In order to determine whether the admission of the marihuana would bring the administration of justice into disrepute, I will assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter - infringing state conduct, (2) the impact of the breach on the Charter -protected interests of the Applicant, and (3) society’s interest in the adjudication of the case on its merits. i.

The seriousness of the Charter -infringing state conduct [ 36 ] If I am wrong and there are Charter breaches, the first line of inquiry under Grant is to determine the seriousness of the Charter -infringing state conduct, in this case of Constable Frost’s conduct. Based on Constable Frost’s testimony on the voir dire and the in-car video, it is clear that Constable Frost acted in good faith. He was truly concerned that the fact that the Applicant was driving under the speed limit may be indicative of fatigue or inebriation. Constable Frost showed a great respect for the Charter .

For instance, he said that after the Applicant had run away, he decided to act as though the Applicant was still on the scene and took his narcotics dog out and deployed him around the exterior of the vehicle. He did not open the trunk right away. His conduct was not deliberately in violation of established Charter standards; it was neither deliberate nor egregious. Constable Frost acted in accordance to what he thought was legitimate. Under the first inquiry, I therefore, conclude that admitting the evidence would not undermine public confidence in the rule of law. ii.

The impact of the breach on the Charter -protected interests of the Applicant [ 37 ] The second line of inquiry under s. 24(2) of the Charter focuses on the seriousness of the impact of the Charter violation of the Charter -protected interests of the Applicant. If I am wrong and the Applicant had an expectation of privacy with respect to the vehicle, it was very low. The Applicant ran away from the officer, abandoning the vehicle on the scene. The marihuana is real evidence which was independently discoverable.

In fact, had the search not been done at the scene, the vehicle would have had to be impounded and its inventory would have led to the discovery of the drugs in the trunk of the vehicle. Under this second inquiry, I conclude, that the impact of this breach would be minimal. iii.

Society’s interest in the adjudication of the case on its merits [ 38 ] Relevant considerations under the inquiry relating to public interest in the adjudication of the case on its merits in this case include whether truth-seeking function of the criminal trial process would be better served by admission the marihuana or by its exclusion, whether the evidence is reliable and its importance to the Crown’s case. The marihuana seized in the vehicle is highly relevant and reliable evidence. The marihuana is essential to a determination on the merits. This third inquiry weighs in favour of admitting the evidence VI.

Conclusion [ 39 ] The weighing and balancing process under Grant leads me to conclude that the marihuana found in the vehicle should be admitted under s. 24(2) of the Charter . Even if I were to conclude that there were Charter breaches, its admission into evidence would not bring the administration of justice into disrepute. Accordingly, I dismiss the Charter challenges on this voir dire and the evidence of the Crown is admitted.

Heard on the 24th and 25th day of January, 2011. Dated at the City of Calgary, Alberta this 22 nd day of February, 2011. J.T. McCarthy J.C.Q.B.A. Appearances: A. Szabo for the Crown T. Roulston for the Accused